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Discovery in Compliance Proceedings

The Merit Systems Protection Board (MSPB or the Board) is amending its rules of practice and procedure to clarify that parties have a right to discovery under the MSPB’s existing discovery procedures in compliance proceedings.

The interim final rule is necessary because in Bernard v. Dep’t of Agric., 788 F.3d 1365, 1367–70 (Fed. Cir. 2015), the United States Court of Appeals for the Federal Circuit held that the MSPB’s regulations provide no clear guarantee that parties are authorized to undertake discovery in enforcement proceedings.  The interim final rule amends the MSPB’s regulations to address this holding and make clear that the parties have a right to discovery in such cases under the Board’s existing discovery procedures.

A new provision, section 1201.183(a)(9), is inserted to make clear that discovery may be undertaken in enforcement matters.  This new provision makes clear that the Board’s regular discovery procedures apply in enforcement matters and sets a deadline by which initial discovery requests must be filed.  As in other Board cases, this deadline may be changed by the judge.

5 U.S.C. § 1204(h)
Executive Order 13563, "Improving Regulation and Regulatory Review"
5 U.S.C. § 553

Federal Register Notices
80 FR 66787 | 5 CFR Part 1201 | Practices & Procedures | Interim Final Rule

Peter Broida (11-18-15)
National Employment Lawyers Association (NELA) (12-17-15)